At Issue in Skakel’s Libel Suit Against TV Host, Degrees of Tarnish on a Reputation

Is a journalist committing libel if he falsely reports that a known traitor like Benedict Arnold is also a shoplifter, or a notorious mobster like John J. Gotti a dognapper?

Or are some stains to a reputation so ruinous that they obliterate the risk that an offender will ever be able to sue for libel over false statements that cause further harm to it?

That is the crux of the federal lawsuit Michael C. Skakel, 53, has been pursuing for the last year against the lawyer-turned-television personality Nancy Grace and others associated with her current-affairs program.

Mr. Skakel, a nephew of Ethel Kennedy, initiated the libel suit a year ago while he was still inmate No. 301382 at the MacDougall-Walker Correctional Institution in Suffield, Conn. He was 10 years into a sentence of 20 years to life that he had been given for the 1975 murder of his Greenwich neighbor, Martha Moxley, when they were both 15.

In his civil complaint, currently before United States District Judge Vanessa L. Bryant in New Haven, Mr. Skakel took issue with a live broadcast of Ms. Grace’s program from January 2012 that was rebroadcast in April and reused in other formats. He says that it wrongly asserted that his DNA had been found in a tree near the victim; no DNA evidence was ever presented at trial.

Public figures have trouble winning libel suits in the United States since they must also prove that their opponents acted with malice, though Mr. Skakel argues that he should not be held to the higher standards expected of public figures, especially when recent developments in his criminal case have set aside his conviction.

Alison Rudnick, a spokeswoman for Ms. Grace and HLN, which broadcasts the program, expressed confidence in legal briefs their lawyers filed months ago. “We accurately reported on the proceedings at his trial, and we expect the case to be dismissed,” she said.

Mr. Skakel’s prospects for release from prison improved markedly in October when a Connecticut Superior Court judge in Rockville, Thomas A. Bishop, concluded that Mr. Skakel had received ineffective counsel at his 2002 trial and overturned his conviction.

Within weeks, Judge Gary J. White of Stamford Superior Court released Mr. Skakel on $1.2 million bail, which his family posted. The bail assures authorities of his return to prison if a Connecticut appeals court reinstates the conviction.

The four defendants in the libel suit are Ms. Grace, the host of the program; Beth Karas, a legal commentator; and the program’s producers at Time Warner and Turner Broadcasting System.

Neither side contests that Ms. Grace asked Ms. Karas during the broadcast, “Isn’t it true that the Kennedy cousin apparently was up in a tree masturbating trying to look into her bedroom window?”

Ms. Karas replied, “Well, his DNA was found, yes, up in the tree.”

To which, Ms. Grace, said, “Beth, I love the way you put it so delicately, ‘his DNA,’ you know it was sperm.”

“Correct,” Ms. Karas responded.

In court papers, the defendants have argued that the remarks are not libelous because they are “substantially true.” They point to statements Mr. Skakel made to acquaintances and investigators that he climbed a tree by the Moxley home the night of her murder intending to masturbate.

Courts grant some leeway when news organizations use a popular term like “bank” instead of a more technically accurate term like “savings-and-loan association” or when they capture the gist of an event truthfully.

But asserting that Mr. Skakel’s DNA was “found” at the scene “is not a minor misstatement,” according to Stephan E. Seeger, Mr. Skakel’s libel lawyer. That will become exceedingly clear, he said, if Judge Bishop’s decision to set aside the conviction is upheld on appeal, prosecutors decide to try the case again and Mr. Skakel’s legal team has to find jurors who are untainted by the spurious reports for a second trial.

“Look, when you see the letters DNA and put that in any story and hang that around any defendant’s neck, the whole world believes that there is DNA evidence that is lock, stock and done,” Mr. Seeger said. “It’s totally misleading. Anyone who is watching that show now forms the belief that the DNA was there: We all know he’s guilty, period.”

Another reason Mr. Seeger claims the statements are far from trivial is because they accuse Mr. Skakel of acts of moral turpitude that the police never saw fit to charge. “The Defendants essentially invoke the roadkill theory of reputation to claim no possible harm could befall the Plaintiff as a result of the damaging statements — he’s already fully damaged,” Mr. Seeger’s brief argues. “Their position fails to acknowledge the Plaintiff’s reputational interest as germane to future parole applications, future trial prospects, and any and all other discretionary benefits that he may, as a matter of law or right, seek in prison or in our Courts.”

This “roadkill theory of reputation” was famously frowned on by Justice Antonin Scalia in 1984, while he was still a circuit court judge, according to Mr. Seeger.

Now that Mr. Skakel is free, while he awaits a ruling by Connecticut’s Supreme Court that might seal or overturn Judge Bishop’s decision, Mr. Seeger said he may seek injunctive relief on top of a monetary award.

“In their briefs in court, they have been saying he’s a convicted murderer and you can’t damage him more,” he said, “and now they’ve put their foot in their mouth.”

A version of this article appears in print on , Section A, Page 12 of the New York edition with the headline: At Issue in Skakel’s Libel Suit Against TV Host, Degrees of Tarnish on a Reputation. Order Reprints | Today’s Paper | Subscribe